Judicial Dictatorship This Report Serves

Judicial Dictatorship

This report serves as a summary and analysis of the book Judicial Dictatorship by Bridwell and Quirk. It was written nearly a generation ago but many of the allegations, points and analysis in the book remain very relevant to the modern age of judicial action and oversight. The main point of the text is that the judicial branch of the United States government has far surpassed and exceeded the purview that was supposedly intended by the founding fathers. The chapters offer a systemic review with many examples of how this alleged state of being has come to pass.

The book gets things off to a roaring start in the prologue by railing against the concept of judicial review. Judicial review, in a nutshell, is when the United States Supreme Court reviews a law. If they find that the law does not pass Constitutional muster, the law in part or in full is stricken from being in force due to the law running afoul of the United States Constitution. The prologue notes that while all three branches of the United States government have purview over the laws in some manner or form, only the judiciary has the right to have the "final say" as to whether a law is valid and just or not. Within certain contraints, the executive and legislative branches have no such power (Bridwell & Quirk, 1995, pp. xi).

However, the authors of the text assert that Thomas Jefferson himself did not himself see it that way based on words he offered on the subject. In particular, the author suggests that Jefferson insisted that each branch operated independently and that no single branch could exert power over the other and that all three branches were beholden to the people. Bridwell and Quirk suggest that the general practice and concept of judicial review is not consistent with those words of Jefferson (Bridwell & Quirk, 1995, pp. xii).

In the first actual chapter of the book, Jefferson is quoted as taking that idea further when he says that a written constitution only works as intended if there is no judicial review whatsoever (Bridwell & Quirk, 1995, pp. 2). Later in the early part of the book, the Bridwell and Quirk treatise talks about how abortion was very much coming down to democratic process as it was already completely legal, as a matter of democracy and public force, in many states. In fact, thirteen different states had legalized abortion before Roe v. Wade was even decided (Bridwell & Quirk, 1995, pp. 18).

However, the book notes that judicial review leading to the overturning of law was not always commonplace. Indeed, after Marbury v. Madison in 1803, the Supreme Court did not judge any other laws unconstitutional until Dred Scott in 1857 (Bridwell & Quirk, 1995, pp. 36). The book suggests that this opened the proverbial floodgates of truning a limited government apparatus into an unlimited one (Bridwell & Quirk, 1995, pp. 94). However, the book notes that Thomas Jefferson would assert that the people's consent for any branch of the government to act in such a manner should be "ongoing" rather than unlimited and unstoppable (Bridwell & Quirk, 1995, pp. 67).

The book's authors also note that the amount of cases granted for review raised sharply over the years. At one point, the rate of cases approved for hearing before the Supreme Court was as low as 1.3%. However, by 1950 that rate spiked up to a tenth of all cases brought to the court for potential review (Bridwell & Quirk, 1995, pp. 30). Even so, the authors note that sometimes the majority is indeed in the wrong and they can enact laws that are not proper or moral so many of these reviewed cases are most certainly reviewed for the right reasons and any nefarious laws are rightly overturned (Bridwell & Quirk, 1995, pp. 132).

However, there are some ventures and subjects that the Supreme Court ventures into that are very controversial. For example, the art of gerrymandering whereby districts are created, removed and redrawn as the populations and party in power shift over the years, with the bulk of the power behind that district redrawing falling with the party in power, has been infringed upon quite a few times by the Supreme Court. The text points to exactly such a case in North Carolina and one of the opinions in that case used the words "tortured," "irrational" and "bizarre" to describe the district borders (Bridwell & Quirk, 1995, pp. 26). Similarly, it is the opinion of many (including the authors of the text) that the populace has no final power over criminal justice, education, taxation, voting, employment, immigration and deportation but the Supreme Court definitely will add in its two cents if they feel a law or other action is out of line (Bridwell & Quirk, 1995, pp. 33).

Analysis

The author of this report chose to focus on the Fourth Amendment to the United States Constitution. The author of this response believes that this amendment has been very useful but also abused including by the Supreme Court over the years of judicial review and the other actions before that court. The abuse comes from the fact that many people that are legitimately guilty hide behind one or more amendments of the Constitution and the Fourth Amendment is one of them. One can also easily loop in the First and the Fourteenth as well. The Bridwell text makes a reference to this idea when it says that pornographers, criminals and other nary-do-wells are afforded comfort and freedoms whilst completely innocent people are sometimes held prisoner, and with no recourse, against the actions or inactions of the courts (Bridwell & Quirk, 1995, pp. 32). The Bridwell text takes another shot at this concept when it says that the locus of control that the government, including the courts, have on people is much more burdensome and effective against the "bourgeois" rather than the "raving" criminals (Bridwell & Quirk, 1995, pp. 127).

The called for class text that is to be compared and contrasted to the argumetns and states above also raises some major concerns about whether judicial review strays into areans and areas it should not be going. For example, the class text states at one point the question of many when it's asked when judicial oversight morphs into the judiciary making law, which is not its purview (Harr, Hess & Orthmann, 2012, pp. 59). A similar point is made on the next page when it is stated that if the legislature is not trustworthy and is thus subject to judicial review, then that means that only the Presdient, the executive branch, is all that's left to counter the power being exerted by the Supreme Court (Harr, Hess & Orthmann, 2012, pp. 60).

The author of this report is also concerned about how the federal government exerts itself just a tad too much on matters that should be left to the states. One of the reading list items in Judicial Dictatorship was a treatise by Bancroft and one good pull quote from that book suggests much the same thing, in which it is said that it is better and proper for the state to handle criminal matters unless there is good reason why not (Bancroft, 2012, pp. 224). Bancroft states not long after that in the same text that all criminal trials should be held in the state in which they occurred (Bancroft, 2012, pp. 232).

Another book cited in the Bridwell text, however, points out that even Jefferson was a bit of a political gamester in that he unapologetically surrounded himself with only loyal Republicans and no one else. He broke from that tradition a bit with lesser cabinet posts but he did not leave more important cabinet posts to chance (McDonald, 1976, pp. 37). Obviously, while many things have changed in the two-plus centuries since then, it is quite clear that many other things have not changed as much as we may think.

Coming back to the topic of the Fourth Amendment and how that subject can and should be analyzed through the prism of the class and other texts mentioned in this report, there is a potential cause for concern with the Supreme Court overturning laws on bases that are not clearly enumerated in the Constitution and/or are based on precedent that had the same issue. The author of this report is not trying to be incendiary or force opinions on anyone, but the Supreme Court does indeed seem to be potentially crossing a line between sanctifying law and making it.